the claim.") (emphasis added). In the case of multiple claims, proper venue must be established with respect to each cause of action asserted. PI, Inc., 907 F. Supp. at 757; Jordache, 1994 U.S. Dist. LEXIS 2551, 1994 WL 74860, at *3.
When interpreting 28 U.S.C. § 1391(a)(2) in the context of a breach of contract claim, "courts consider a number of factors, including where the contract was negotiated or executed, where it was to be performed, and where the alleged breach occurred." PI, Inc., 907 F. Supp. at 757-58 (citing Jordache, 1994 U.S. Dist. LEXIS 2551, 1994 WL 74860, at *4). According to the amended complaint, the contract in the instant case was negotiated and finalized in New York during Rodger's visit to plaintiff Norman Saferstein's home on May 2, 1992, although the written form confirming the oral contract was not delivered until July 20, 1992. Defendants, while they dispute that the contract was executed in New York, concede that some discussions regarding Rodger's representation of plaintiffs in the Underlying Action took place at the New Rochelle meeting, or, at the very least, that Rodger went to New Rochelle to meet with plaintiffs with respect to Rodger's representation in the Underlying Action. Although it is not alleged that any breach occurred in New York, or that any part of the contract was to be performed in New York, the creation of the contract between the Parties during Rodger's visit to New Rochelle constitutes a substantial part of the events giving rise to the breach of contract claim. For the foregoing reasons, venue is proper in the Southern District of New York as to plaintiffs' claim for breach of contract.
Venue is improper as to all other claims (extortion, malpractice, misrepresentation, fraud/conspiracy, unethical conduct, and breach of fiduciary duty). According to the amended complaint, the factual bases supporting these claims occurred outside New York. Plaintiffs allege no conduct forming the basis of any of these claims that took place in New York. Any extortion, malpractice, misrepresentation, fraud/conspiracy, unethical conduct, or breach of fiduciary duty which defendants may have committed against plaintiffs would have been committed in Pennsylvania or Delaware, where defendants reside and where they prepared for and litigated the Underlying Action, and venue would be appropriate in a district in one of those states pursuant to 28 U.S.C. § 1391(a)(1) or (2). However, since no substantial part of the events or omissions giving rise to plaintiffs' claims (except the first claim for breach of contract) occurred in New York, venue in this court is improper as to all claims except the claim for breach of contract.
As noted above, proper venue would lie in the Eastern District of Pennsylvania with respect to all claims asserted herein. Furthermore, defendants seemingly would be subject to in personam jurisdiction in that district. Therefore, rather than retaining jurisdiction over plaintiffs' claim for breach of contract, and dismissing all other claims pursuant to Fed. R. Civ. P. 12(b)(3), in the interest of justice, we order that this case be transferred to the Eastern District of Pennsylvania, where this case could have (and should have) been brought. See 28 U.S.C. § 1404(a) ("For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."); 28 U.S.C. § 1406(a) ("The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."). A transfer may be made under 28 U.S.C. § 1404(a) or 1406(a) upon motion by either party or by the court sua sponte. See Lead Indus. Assoc., Inc. v. OSHA, 610 F.2d 70, 79-80 n.17 (2d Cir. 1979) ("The broad language of 28 U.S.C. § 1404(a) would seem to permit a court to order transfer sua sponte."); Concession Consultants, Inc. v. Mirisch, 355 F.2d 369, 371-72 n.3 (2d Cir. 1966) ("Once a proper objection to venue is made by a party, § 1406(a) allows the district judge to 'dismiss, or if it be in the interest of justice, transfer such case' to a proper venue. And where the motion asks only that the suit be dismissed, the court may properly, sua sponte, order it transferred.").
Section 1404(a) applies to claims for which venue is proper in this district; section 1406(a) applies to claims for which venue is improper in this district. Therefore, technically, we order transfer of the claim for breach of contract under section 1404(a) and transfer of all other claims under section 1406(a). Furthermore, the court has the power to transfer this suit to a district (or another district) where it might have been brought even though it does not have personal jurisdiction over defendants. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 8 L. Ed. 2d 39, 82 S. Ct. 913 (1962); 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d §§ 3827, 3844 (1986).
According to Mobil Corp. v. S.E.C., 550 F. Supp. 67, 69 (S.D.N.Y. 1982), parties should be provided notice and an opportunity to be heard when transfer is proposed sua sponte by the court. See Abidekun v. Mary Imogene Bassett Hosp., 1996 WL 68555, at *3 (E.D.N.Y. Feb. 6, 1996) ("The Court will not rule on [the issue of transfer] until . . . both sides have had an opportunity to be heard on the venue issue."); Clisham Management Inc. v. American Steel Bldg. Co., 792 F. Supp. 150, 156 (D. Conn. 1992) ("In compliance with the requirement that parties be given prior notice of and an opportunity to be heard on a sua sponte motion to transfer venue, the court, after notifying the parties of its intentions, granted counsel . . . an opportunity to argue on behalf of their respective clients the merits of such a transfer."); 15 Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3844 (1986) ("The statute is broad enough that a judge can order transfer on his own initiative, but if the court is considering this course it should make that possibility known to the parties so that they may present their views about the transfer."). Here, the issue of venue has been raised and briefed by the parties, and we have decided that venue is improper in this district except with respect to the claim for breach of contract. The only remaining issue is whether to dismiss the claims that are not properly before this court for want of venue, or transfer the case to another district in the interest of justice. We do not deem it necessary to solicit further arguments from the parties regarding whether transfer of venue is appropriate. Defendants have conceded in their briefs that venue lies in the Eastern District of Pennsylvania because all defendants reside there. 28 U.S.C. § 1391(a)(1). Plaintiffs have been afforded an opportunity to argue that venue is proper in the Southern District of New York, and we have concluded that only the claim for breach of contract may be pursued in this district. Plaintiffs can not complain that transfer is inappropriate because the alternative is dismissal of their entire case with the exception of the claim for breach of contract.
In this case, the interests of justice would be served by transferring this case to the Eastern District of Pennsylvania, where defendants reside and where a substantial portion of the acts upon which the claims asserted occurred during management and preparation of the Underlying Action for trial. The federal district court for the Eastern District of Pennsylvania would have jurisdiction over defendants, and many of the anticipated witnesses would be amenable to subpoena from that district. Moreover, the court there would be familiar with the state's laws regarding legal malpractice and other issues raised in this case. Plaintiffs would have to travel to the Eastern District of Pennsylvania to try this action. However, by continuing this action in this court, plaintiffs would be left with a claim for breach of contract, and would be required to re-file the remaining claims in another district. The interests of judicial economy would be served by trial of all the claims together.
For the foregoing reasons, pursuant to 28 U.S.C. §§ 1404(a) and 1406(a), venue of this case shall be transferred to the Eastern District of Pennsylvania. Pursuant to L.R. 26, the Clerk shall, upon expiration of five (5) days, mail to the Clerk for the Eastern District of Pennsylvania certified copies of this opinion and order and of the docket entries in this case, and the originals of all other papers on file in this case.
June 10, 1996
White Plains, New York
William C. Conner
Senior U.S. District Judge